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The Judicial System in Israel Tulsa Law Review Volume 34 Issue 3 Spring 1999 The Judicial System in Israel Amnon Straschnov Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Amnon Straschnov, The Judicial System in Israel, 34 Tulsa L. J. 527 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol34/iss3/3 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Straschnov: The Judicial System in Israel TULSA LAW JOURNAL Volume 34 Spring 1999 Issue 3 REMARKS THE JUDICIAL SYSTEM IN ISRAEL* The Honorable Amnon Straschnovt I. INTRODUCTION The legal system of the State of Israel is quite different from that of the United States. This paper will discuss the basic legal system of Israel while emphasizing the security problems as well as the problems that the Israeli Supreme Court faces as a result of being without a written constitution. Both the American and Israeli systems derive from the Anglo-Saxon legal system of the United Kingdom; however, they each have unique deviations. For example, Israel, like the United Kingdom, does not have a written constitution, whereas the United States does. The three main differences between the American and Israeli systems that this paper will discuss are the following: (1) Israel does not have a jury system; (2) Israel does not have capital punishment; and (3) Israel does not have a written constitution. Recognition of these differences will aid in illustrating the interworkings of the Israeli justice system. * These remarks were delivered at the Luncheon for the Jewish Federation of Tulsa on February 10, 1999. They are published here substantially as delivered. To aid the reader, footnotes have been added. At the time these remarks were delivered the author was on sabbatical as a visiting scholar at New York University Law School. t JudgeAmnonStraschnov isajudge in the district court of Tel Aviv, where he presides over criminal cases. He graduated from the Hebrew University of Jerusalem Law School. He also served as a military judge, Deputy Military Advocate and Chief Military Prosecutor of the Israeli Army, and Military Advocate General of the Israel Defense Forces. 527 Published by TU Law Digital Commons, 1998 1 Tulsa Law Review, Vol. 34 [1998], Iss. 3, Art. 3 528 TULSA LAW JOURNAL [Vol. 34:527 A. No Jury System in Israel First Israel does not have jury system.' Professionally trained judges handle all aspects regarding the administration of justice.2 Israeli judges are not elected, but appointed by a special judicial appointment committee which eliminates politically motivated appointments. Unlike the judiciary in the United States, Israeli judges not only make decisions on legal issues, but operate as finders of facts as well.' Additionally, serious criminal cases are tried by a qualified three judge panel. Israeli judges are responsible not only for giving the verdict, but also for providing extremely detailed opinions which are fit to proceed to the upper courts.4 Thus, the State of Israel does not have a jury system. Generally, laymen would not take part in a judicial decision in Israel; two reasons have been offered for this. Initially it is believed impossible to find twelve people who do not know each other, or the grandmother of the prosecutor, or the son- in-law of one of the witnesses. Such familiarity among potential jurors makes the creation of an unbiased jury equally impossible. Additionally, and most importantly, one would be hard pressed to find twelve Israelis who agree unanimously on a certain fact or point, let alone an entire case. Therefore, this author believes that a system without a jury best serves the Israeli people and Israeli justice. B. No CapitalPunishment A second distinction between the American versus the Israeli systems lies in the fact that Israel does not apply the death penalty. Even though the laws of Israel, the West Bank, and the Gaza Strip all permit capital punishment in special circum- stances, it is never applied.5 For example, offenses performed by the Nazis and their aids during World War II, crimes against humanity, and high treason in times of war, are all punishable by death.6 Since the establishment of Israel fifty-one years ago, only one person has been executed.7 Infamous Nazi Adolf Eichmann was sentenced to death and executed in 1962, after he was captured and brought from Argentina to Israel. s Eichmann played an important role in the Nazi regime. He was personally responsible for the extermination of millions of Jews in concentration camps, and was in charge of the "final solution" of the Jewish people. However, in America, the death penalty is currently utilized in thirty-eight states, including Oklahoma and 1. See Shlro Levin, The State of the Courts in Israel, 45-OCTFED.LAw. 33 (1998); see also INRoDUcfON 'T MLAW OF IsRAEL 286 (Keren C. DeWitt-Arar &Amos Shapira, eds., Kluwer Law International 1995). 2. See Levin, supra note 1,at 34. 3. See INRmODcON 7OTRE LAW OF ISRAM., supra note I, at 282. 4. See id. 5. See id. at 263. 6. See id. 7. See ImNRODucN To Tm LAw OF IsR-AE, supra note 1,at 263. 8. See Susan Taylor Martin, Now is the Time for Statesman Assad, ST.PelRSBurG TIMES, Jan. 9, 1998, at 2A. https://digitalcommons.law.utulsa.edu/tlr/vol34/iss3/3 2 Straschnov: The Judicial System in Israel 1999] JUDICIAL SYSTEM IN ISRAEL Texas? In addition, some states do not have a minimum age limitation for enforcing this severe punishment.1l American courts are permitted to even impose the death penalty on juveniles who are above the age of sixteen." In Israel, as well as under international law, the imposition of the death penalty upon a person under the age of eighteen is completely prohibited.' An extremely devastating case occurred in 1978 which required my participa- tion as the military prosecutor. 3 The case involved nine terrorists who arrived in Israel by boat not far from Kibbutz Ma'Agan Michael. The terrorists encountered a Jewish-American photographer and asked her where they had landed, expecting to be in Tel Aviv. After she told them where they had actually landed they killed her. Making their way up the beach road, they captured a bus and ordered the driver to take them towards Tel Aviv. They then seized a second bus and held all aboard hostage. Upon their arrival in Tel Aviv there was a shooting fight between these terrorists and the security services. Thirty-four people were killed, including women and children. Out of the nine terrorists, two were captured and brought to trial before a military court in the city of Lydia. A pressuring outcry existed in Israel to invoke the death penalty because of the mass killing of innocent people. This case was slightly problematic because one of the terrorists captured was under the age of eighteen.' 4 By Israeli law, he could never be given a death sentence. The second defendant, on the other hand, was in his early twenties, and was eligible for the death penalty. Political and legal debate transpired between the Prime Minister, the Minister of Defense, the Minister of Justice, and the military prosecutor regarding the imposition of the death penalty in this specific case. To execute one young man and not the other, simply because of a few years, was not consistent with the Israeli sense of justice. In the end, despite the severe tragedy that occurred as a result of brutality against innocent people, the death penalty was still not invoked. It has been over fifty-one years since the independence of the State of Israel, and except for the case of Adolf Eichman, the death penalty has never been 9. States permitting capital punishment are: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, -Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, NewHampshire, NewJersey, New Mexico,NewYork,North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming. See Thomas J. Walsh, On the Abolition ofMan: A Discussionof the Moral and Legal Issues Surrounding the Death Penalty, 44 CLEv. ST. L. REv.23, 26 n.25 (1996). 10. See Elisabeth Gasparini, Juvenile CapitalPunishment: A Spectacle of a Child's Injustice, 49 S.C. L. REV. 1073, 1084 n.98 (1998) (The fifteen states that have no minimum age limitation are: Arizona, Arkansas, Delaware, Florida, Idaho, Mississippi, Montana, New Hampshire, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Washington.). But see Thompson v. Oklahoma, 47 U.S. 815,830 (1989) (holding that the death penalty could not be invoked against any person under the age of sixteen). 11. See Thompson, 47 U.S. 815 (1989). 12. See Convention on the Rights of the Child, G.A. Res. 44/25, 1 U.N. GOAR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A144/449 (1989), reprintedin 3 INiERNAmONAL LAW & WoRW ORDER: BASic DocUMENIs III.D.3 (B. Weston ed., 1998); see also Capital Punishment and the Implementation of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty: Report of the Secretary General, U.N. ESCOR, at 12, U.N. DOC. E/1995/'8 (1995). 13. Judge Straschnov served as Chief Military Prosecutor of the Israeli Army from 1976-80 and 1981-82. 14. See generallyTHE LAw oFIsR1,t GEmLALSuRvEys 189-90 (Itzhak Zamir & Syliane Colombo eds., 1995). Published by TU Law Digital Commons, 1998 3 Tulsa Law Review, Vol.
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